Chapter 2 Family Law and Replevin Actions

• Library: Pet Law & Custody: Establishing a Worthy & Equitable Jurisprudence for the Evolving Family (ABA) (2017 Ed.)

Chapter 2 Family Law and Replevin Actions

"I care not for a man's religion whose dog and cat are not the better for it."

—Abraham Lincoln

The heart of this chapter is the progression of replevin cases central to the development of pet custody jurisprudence. You may be surprised by the sheer variety of ways that pet custody disputes proceed through the courts, as well as the wide-ranging basis for legal decisions.

Claims that can be made with regard to companion animal disputes include ownership, adoption, cost, gift, conversion, lost/found, patent, and third-party rights. These claims may be affected by conditional ownership agreements, use agreements, and contractual rights, which are common in breeder sales, as well as agreements for the foster or adoption of rescue animals. Assisted reproductive technology concepts, and even patent law, may impact contractual rights now, and in the future, too.

FICTITIOUS STANDARD OF VALUE

In case law, courts investigate not only indicia of ownership but also the different types of value an animal might have, including fictitious, moral, relational, sentimental, or economic. Courts explore whether animals are cherished or sentimental property with special value, such as a family memento or heirloom.

The 1944 Akers v. Sellers¹ decision opened the door on this subject when the court explored what it would reject as constituting a fictitious standard of value in a replevin action involving a Boston Bull Terrier who provided companionship. The court expressed its yearning to render a just and wise decision.

Important cases on how companion animals should be valued include Raymond v. Lachmann,² where a cat was viewed as having a cherished status; Houseman v. Dare,³ which examined the subject of special subjective value and sentimental attachment; and Strickland v. Medlen,⁴ a case that remains steadfast in applying what the court called a "true rule" for the purpose of circumscribing the noneconomic value of a companion animal in a tort case. Sawh v. City of Lino Lakes⁵ is emblematic of a court that was comfortable with the application of thin due process rights in a death row case involving a yellow Labrador. To the court, the family dog was merely tangible personal property.

Criteria for the Record

When making a pet award, courts may vary as to what they say about, or how they use, the record. One judge may oppose using best-interest criteria for the award of a pet but still exercise the court's discretion that, in effect, causes the pet to receive the best home. Another court may permit significant testimony, including about the dog's daily life, which would enable the court to exercise its discretion based upon unidentified multiple factors. Beyond the trial court, appellate judges can be frustrated with their inability to place a dog where the dog yearns to be when there is a deficiency of the trial record.⁶

Joint Custody and Visitation

Courts are conflicted about whether to award joint custody or access rights, which are, in essence, horizontal property rights. In Bennett v. Bennett,⁷ the Florida court, on appeal, reversed the lower court's visitation order because of the specter of "continued squabbling." Even so, in the New Jersey case of Houseman v. Dare,⁸ the trial court effectively granted joint custody for a cohabiting couple in a case that garnered national attention. In contrast, some courts abhor the idea of having continuing jurisdiction over companion animals and will not enforce a care and sharing arrangement for a dog.⁹

A Virginia court took a strong position against joint custody in Whitmore v. Whitmore.¹⁰ While recognizing the intrinsic value of a Welsh Corgi to a childless couple who regarded the dog as a family member, the court would not permit visitation or shared custody, as the court considered this type of arrangement to be "ill-advised." From a close read of this case, it appears that the wife's devotion to the dog influenced the court's decision as to who would be awarded custody, as she had visited the dog several times a day during the dog's extended hospitalization while the husband had not.

Many cases reveal the court's long-term consternation about where animals belong in the legal system. For example, in Arrington v. Arrington,¹¹ the Texas court tolerated the lower court's award of pet visitation rights. What bothered the court was the idea of appointing a managing conservator, as this was a title reserved for human children, not canines.

In a similar vein, the Nuzzaci v. Nuzzaci¹² court was offended by the application of human terms to companion animals. Although a childless divorcing couple had worked out a stipulated temporary agreement for visitation given that one of them had moved to a home with pet restrictions, the court was contemptuous of their interest in sharing a Golden Retriever. The court offered a variety of definitions in the court's opinion, including definitions for "Adult," "Child," "Family," and "Relative." The court emphasized that the terms "pet," "animal," and "dog" were not included in these definitions.¹³ The court continued that as "legislation reveals no mention of animal husbandry visitation rights," the court did not want to "broaden the term 'husband' in such a manner," either.

Animal/Human Bonds

Courts have become increasingly aware of the importance of human and animal relationships; some embrace pets as family members or at least recognize the animal as the family pet. Even so, courts are conflicted about whether to award joint custody or pet time, in part because of concerns about the floodgate problem. Some courts are comfortable with enforcing pet custody schedules reminiscent of child custody schedules, while others, when presented with the same topic, resort to sarcasm. Courts opposed to using animal best-interest standards may welcome minimal animal welfare standards.¹⁴

Animal/Animal Bonds

Examples of animal/animal bonds include the constancy of the relationship, the sharing of food and toys, or one animal sacrificing itself for another animal. The existence of an animal/animal bond is reflected in a Hurricane Katrina story¹⁵ where a boat approached a dog left behind. Upon seeing the rescue boat, the dog first swam toward the boat and then away from safety, past the side of the house, and around to the back, where another dog was trapped. The boat followed, and both dogs were saved.

DETERMINING FAMILY MEMBERS

In the 21st century, who is loved and who is part of one's "family" is determined less by species or old definitions. In Rabideau v. City of Racine,¹⁶ the Supreme Court famously said, "Humans have an enormous capacity to form bonds with dogs, cats, birds and an infinite number of other beings that are non-human. Were we to recognize a claim for damages for the negligent loss of a dog, we can find little basis for rationally distinguishing other categories of animal companion." In the same vein, there are popular books about friendships between unlikely animal species.¹⁷

REPLEVIN

Replevin is one of the oldest forms of actions known to common law, a type of action thought to have emerged during the reign of Henry II in 12th-century England; laws regulating animal use date back to the Babylonian Code of Hammurabi in 1754 b.c.e. Though now codified, the essence of the replevin action remains the same as it always did. It is a legal procedure to claim the right to have property returned from the possession of one who has less right to hold it.¹⁸ This claim differs from one in trespass and trover in that it seeks the recovery of property rather than monetary damages. For a trover action,¹⁹ ownership is not required, only the right to hold on to the property.²⁰

Family lawyers should know that rules of court pertaining to civil replevin actions are typically different than family court rules, so get reacquainted with the civil rules. Pay particular attention to whether you have a mandatory disclosure obligation before formal discovery is allowed. Be careful to fill out whatever forms are required that detail your cooperation efforts with opposing counsel. You also need to analyze early on whether you should bring a nondispositive or dispositive motion; remember that each type of motion has a different deadline. Think about these subjects in terms of your local bench's ideas about case management.

Bringing a dispositive motion before discovery is completed may represent a wasted effort. In addition, expect the litigant out of possession to be upset, feel the passage of time is intolerable, and want the pet immediately returned, regardless of counsel's readiness to prevail in a dispositive summary judgment action.

Utilizing the theory of replevin, there are many ways to approach a pet custody case whether a party is seeking joint custody or the outright award of the pet, with or without pet time. Although courts are unlikely to replicate the wide array of best-interest standards for children in making a determination about a pet, courts now may consider a variety of interests affecting animals. In a close case, courts may favor the party willing to share the animal over the one who will not, even if the court will ultimately permit only one owner.

There are compelling public policy and equitable principles that may cause the court not to issue a replevin order based upon an ownership claim. If the court issues a replevin order, it might have the effect of the unworthy party, or bad actor, gaining possession of the pet. If the party initiating the replevin has a history of domestic abuse, animal mistreatment, or cruelty, the court may use its considerable equitable discretion, as at its roots, replevin is an equitable action. Attorneys should advance and cobble together arguments from a broad spectrum of pet law cases, including family, civil, and criminal law.

BEST-INTEREST FACTORS

Best-interest factors the court could look at in reaching a decision might include standard of living, animal/human bond...